Image courtesy of NBCMiami.com

CHICAGO — Circuit Court Judge Antonio Arzola of the 11th Judicial Circuit in Miami-Dade County, Florida had given the chief of police and the City of Opa-Locka in Miami-Dade County until Oct. 30 to file their answers to his denial of their motion to dismiss with prejudice in connection with the wrongful-death suit brought by heirs of four Filipino Americans who died in a car crash four years ago.

Citing a long list of precedents, Cheryl Cason and Jeffrey Key as chiefs of police and Kelvin Baker, Sr. as city manager of the City of Opa-Locka in Miami-Dade County said that although Sergio Perez is a city employee as a member of the Opa-Locka police force, Perez’s alleged negligence of improperly instituting and maintaining a police chase of motorist Willie Dumel who recklessly entered I-95 in the wrong direction and smacked into the car carrying four Filipinos and Filipino Americans, who were all killed on the spot on April 3, 2013, the case against them should be dismissed with prejudice because Perez as an officer was “acting within the course and scope of his employment with the City of Opa-Locka.”

Cason, Key and Baker’s lawyer, E. Bruce Johnson, have filed an appeal with the Third District Court of Appeals in Miami, Florida.

Killed in the fiery accident on April 3, 2013 were Dennis Ryan Rinon Ortiz, 33, international sales director of Alveo Land, a subsidiary of Philippine-based Ayala Land Company; Ortiz’s Alveo subordinate associate, Lily Marie Azarcon, 26, a single mother of an eight-year old child; Katelyn Rhia Hernandez; Azarcon’s friend, Albertson Anthony Almase, 31, a Petty Officer 2nd Class of the U.S. Navy, residing in Yokosuka, Japan and owning assets in Florida; and Almase’s little sister, Kristina Almase, 26, a former resident of Cebu, Philippines, who just relocated to Fort Lauderdale, Florida before the accident.

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Cason, Key and Baker said, “State and federal courts, including federal courts under the 11th Circuit and in Florida, have uniformly held that negligent employment torts, such as those alleged here, are not actionable against governmental co-workers, including those with supervisory authority such as chief of police or city manager.”

They argued that “Florida is devoid of any authorities which impose liability for improper (whether negligent or in bad faith) employment upon government supervisors, rather than the government itself.”
They added, “Negligent retention only allows for recovery against an employer for acts of an employee committed outside the scope and course of employment,” citing the case of Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA 1986).

“This separate and distinct tort is available only when no special relationship exists (i.e., under respondeat superior, by statute, or under principles of agency) to make the principal legally responsible for the conduct of the agent,” they said.

Only after a jury trial can plaintiffs recover their claim based on employer’s negligence in the selection, retention, training, supervision, entrustment and retention of an employee if the claim was the result of employee’s willful and intentional conduct occurring outside the course and scope of employment.
They cited the case of an employee who acted outside the scope of his employment when the employee stole “the airplane owned by the claimant,” in the case of Island City Flying Service v. General Electric credit Corp. 585 So. 2d 274 (Fla. 1991).

And they also mentioned the case of a school board employee performing “satanic acts on students including sexual abuses and batteries” in Duyser v. School Board of Broward County, 573 So. 2d 130 (Fla. 4th DCA 1991). Or a county employee acting outside the scope of his employment and committing an armed robbery against the claimant in Metropolitan Dade County v. Martino, 710 So. 2d  20 (Fla. 3rd DCA 1989).

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Cason, Key and Baker said, Florida statute’s Sec. 768.28(9) says, “No officer, employee or agent of the state or any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights safety or property.”

After the pre-trial issues are resolved, a jury trial of the civil suit will begin.

The criminal aspect of the case was resolved last year when the wayward driver, Willie Dumel, who was fleeing from Sergio Perez on the wrong way and whose car crashed head-on with another car carrying the four Filipinos, including the driver, who all died, had been sentenced to 10 years in prison and additional 10 years of probation. He had pleaded guilty to four counts of manslaughter before Judge Alberto Milian of the 11th Judicial Circuit Court in and for Miami-Dade County in Miami, Florida.